Concord, NH- The New Hampshire Supreme Court upheld the state’s law providing tax credits for businesses that fund scholarships to private schools in a ruling Thursday. The unanimous ruling overturned a lower court’s decision in June that had declared a part of the law- one that allowed the scholarship money to be used at religious schools- was unconstitutional.
The law, passed in 2012 by Republicans who overrode a veto by former Democrat Governor John Lynch, allowed businesses that donated to private nonprofit scholarships to claim a tax credit of up to 85% of their donations. The scholarships were then awarded to qualified children of low-income and middle-class families. The program had a cap of $3.4 million in its first year, and $5.1 million in the second year.
Former state representative D.J. Bettencourt, an author and prime sponsor of the bill, wrote “The School Choice Scholarship Act (House Bill 1607) allows businesses to make tax-deductible donations to K-12 educational scholarship programs. Such programs will offer up to $2,500 scholarships to disadvantaged and special needs students toward the cost of out-of-district public schools, independent schools, and even certain home-schooling expenses.”
Challengers of the law include the American Civil Liberties Union (ACLU), the NH ACLU, Governor Maggie Hassan (D-Exeter) and public school activist and newly-appointed NH Board Of Education member Bill Duncan. A lawsuit filed by the ACLU argued that because families would be able to use scholarship money at religious schools, the law violated two sections of the New Hampshire Constitution.
The Blaine Amendment in New Hampshire’s Constitution states “no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.” (New Hampshire Constitution, Part II, Article 83). Another section states “no person shall ever be compelled to pay towards the support of the schools of any sect or denomination.”
However, proponents of the tax credit law countered that that tax credits are not the same as taxpayer dollars; the US Supreme Court ruled in 2011 that tax credits are not public funds and taxpayers cannot challenge how people or corporations donate their money. “We don’t want taxpayer dollars supporting religious activities any more than we want churches to become dependent on government money. That’s why scholarships under HB 1607 are entirely privately funded,” wrote Bettencourt.
The NH Supreme Court did not rule on the merits of the law, but rather stated that the petitioners failed to prove that “their personal rights have been impaired or prejudiced.” Governor Hassan expressed her disapproval in a press release: “I continue to believe that the voucher tax credit is unconstitutional and am disappointed that the Supreme Court did not rule on the underlying issue.” Referring to the law as a voucher program, she stated that it is “bad public policy for public education in New Hampshire and our taxpayers, diverting millions of dollars in taxpayer money with no accountability or oversight to religious and private schools at the expense of public schools and property taxpayers across the across the state.” She added that “the legislature should repeal this misguided law.”
Despite Hassan’s urging to repeal the law, the ruling was praised throughout New Hampshire. Network For Educational Opportunity Executive Director Kate Baker said, “We are thrilled that the New Hampshire Supreme Court has ruled unanimously today that empowering parents to make educational decisions for their children does not violate any provision of our state constitution. We are delighted that for the 2015-2016 school year we will not be forced to discriminate against any applicant families based on their beliefs.”
Jim Rubens, a Republican candidate for US Senate, said “Thank you to those legislators and activists who constructed New Hampshire’s tax-credit funded scholarship program that allows statewide school choice for deserving students. Those opposing New Hampshire’s scholarship program were unable to demonstrate to the Supreme Court that they were personally harmed in any way. Now, the benefits of this law can flow to many more students.”
“School choice is not an indictment on public schools nor a battle of public vs. private schooling. It’s about giving disadvantaged and special needs students and their families the opportunity to excel in an education that fits their needs,” wrote Bettencourt.